Carry on censor

Who decides what is too shocking for us to see?

Marion Bava's Black Sabbath, banned in the UK for many years because censors judged it to be too violent.

Oh my! The BBFC is rattled. Forgive the schadenfreude: but it couldn’t have happened to a more deserving bunch of nannying busybodies.

Earlier this week, Government introduced new regulations designed to clamp down on the commercial availability of online porn. This they did using a device known as a statutory instrument, which means that the regulations - which in theory do no more than amend existing law – were placed in the library of the House of Commons and then, after a suitable period, dragged out and signed by the relevant Minister. In this case, Ed Vaizey, Minister for Culture, Media and Sport.

There was no parliamentary debate, no advance publicity. Nothing.

A major change to how individuals may watch and interact with pornographic material has been foisted upon the British people with no notice and no consultation.

No doubt the organisations concerned – the British Board of Film Classification and ATVOD, the body responsible for regulating online video services in the UK – saw nothing out of the ordinary in this. After all, they have been regulating material for years, with very little concern for how the public would actually like that material to be regulated.

For much of 2013, ATVOD were in discussions with the UK Finance industry, attempting to persuade them to block access for UK residents to a wide range of overseas porn on the grounds that it breached the UK Obscene Publications Act. One might ask why a body tasked with regulating UK-based online services should devote a second of its time to intervening in an overseas trade for which has no responsibility. Or why it did not simply ask the UK parliament to debate and, if necessary, legislate on the matter.

But that would be to misunderstand the crusading zeal of former film censor and CEO of ATVOD, Peter Johnson. Despite public warnings (by this author, no less!) that such an initiative was unlikely to succeed, he continued spending public funds on this campaign until late 2013, when the financial services industry turned around and explained that it would be “inappropriate” for them to become the regulator of the open internet. Expensive, too, since such an initiative was always open to challenge at law.

Was ATVOD behind this latest change to the law? Perhaps. Perhaps not: perhaps they will greatly resent such a suggestion. But given their track record, given the secret way in which these changes were made, the speculation is richly deserved.

Meanwhile, the BBFC continues to cover its hypocrisy over censorship with the figleaf of an obligation to conform to the law. Specifically: the Obscene Publications Act and, more recently, a ruling, in 2008, that created a duty for them to look at the "potential harm and risk of harm" in any material they classify. Far be it for me, a humble scribbler, to take issue with a High Court Judge, but this ruling appears to have radically amended the law as written, from being mindful of “harm to potential viewers”, to “potential harm to viewers”.

Thus, the BBFC has developed a tripartite system as far as grown-up material is concerned. There is the Obscene, which is unlawful to publish, criminal – and never to be passed. There is adult, to which they award the 18 certificate. And there is R18 – a category somewhere between the two which may only be sold in licensed sex shops.

It is the latter that is focus for the latest controversy . The new regs effectively bar service providers from making available material that is either classified as R18 or which they reasonably can expect would receive an R18 rating unless they can be sure that persons under the age of 18 can’t access it. Therein lies an entire world of possible legal interpretation.

Of course, the BBFC must not pass unlawful material. The problem is how they determine what is unlawful, or obscene. For the test of the latter is what a jury considers so on a case by case basis. They cannot know in advance whether a jury would consider fisting or erotic urination (aka “watersports”) to be obscene. Or can they?

It has been suggested in the past that the BBFC simply ask the public on these topics. After all, if the test of obscenity is what a majority of people consider to be obscene, then this is one area where opinion polling could be helpful. What is interesting about the culture at the BBFC is that when such suggestions have been made, the BBFC has reacted with superior amusement – incredulity even.

What do you mean? Actually ask the public what they think on a matter where the public are the final arbiter.? What an extraordinary idea!

Instead, it relies on guidance from the Crown Prosecution Service which despite being soundly spanked in one of the biggest cases to test the water, so to speak, on urination in recent years – that of Michael Peacock in 2012 – continue to issue guidance that its depiction is obscene.

Which brings us back to this week’s panic – and the near unprecedented descent of one of these lofty censors, Murray Perkins, into the pages of the Guardian to defend the new regs. The very fact that the BBFC has done this indicates how rattled it is.

First off, these regs are, they claim, no more than an application of existing law to the internet. In arguing this, they make the same mistake as much of government, treating the internet as no more than a form of speech – as opposed to a space in which publishing is more akin to action than words. That, in part, is why the sudden public outcry – and why, in time, it is likely that the entire machinery of censorship will have to be overhauled.

Still, Perkins claims the BBFC are merely acting as they are legally required. Moreover, “there is no direct crossover between the standards for sex works and those applied to non-pornographic films”. What nonsense! In the ruling on harm in 2008, no distinction was made between harm resulting from sexual acts and from, say, driving fast cars. Yet for reasons best known to itself, the BBFC obsesses over the former, mostly doesn’t worry too much over the latter.

Those who have dealt with the BBFC over the years also may be surprised to learn from this article that they aren’t against all breath play, all urination. In guidance provided yesterday, their press office further explain that they have passed films containing female ejaculation. This is not how they have represented their position in the past when they argued, for example, that depiction of female ejaculation was “nothing more than a cynical attempt on the part of porn distributors to get around the constraints imposed on urolagnia in sex tapes by the current interpretation of the Obscene Publications Act”.

Nothing, they claim, has changed: they have gained no new responsibilities, even though some might consider that these new regulations create significant new workload for them.

Nothing has changed. Except that this latest round of regulation has hit the headlines, the public has noticed, and like some sexual extrovert caught with trousers round their ankles when the lights go on, our moral guardians are even now furiously explaining and and excusing.

Nothing to see here. Oh no! No, go away – and let us get on with our jobs!